Notice from lawyer

[oompaloompa]

what about the ploy of not signing for any registered post, if a letter comes refuse it....?

again, as some people have said, why would they warn you if they were going to serve you.....

just stop selling it for now....

why pay for a lawyer, until you need one.

[dallis]

Pretty much my advice too.

[dachilla]

Guys, OP clearly received a cease and desist letter.

This is usually the first stage and at this stage it's still "cheap" for OP to get out of this mess. Bear in mind, they got his real name and address.

If OP doesn't reply within the given timeframe, the rights holder will seek a temporary court order. At that stage, things are gonna get pricey.

If he doesn't react they will take things to court and get his ass sued for IP infringement. Then the court might very well look into damages and have him pay damages. E.g. for stuff he sold and for damage of reputation and what not.

Do they have any proof you may ask. I bet they do, because it's easy to take screen shots of his ebay shop and his feedback page.

But if OP already de-listed all his items you may ask? Nope, even that won't work, because the rights holders action against OP are also to prevent him from selling the stuff in the future ("risk of recurrent infringement").

But they can't calculate the damage OP has done. Be sure they can and the court can too.

Seek professional advise and try to get out of there right now, because it's gonna get more and more expensive.

[oompaloompa]

Can you explain the purpose of a cease and desist letter to the IP owner? What does this state and what does it achieve.

[dallis]

Pretty much what it says. They want the OP to 'cease and desist' from whatever it is they're complaining the OP is doing.

Depending on what the OP has actually done, a petitioner may or may not be able to prevail, and compensatory damages are almost entirely dependent on the judge.

Keep in mind Dachilla's husband is an attorney, and therefore has an innate bias towards encouraging people to run out and to pay an attorney for advice.

The advice I usually get from honest attorneys generally runs like this: "Your case may/may not have merit, however, in the end it's all up to the judge."

[dachilla]

Originally Posted by dallis

Keep in mind Dachilla's husband is an attorney, and therefore has an innate bias towards encouraging people to run out and to pay an attorney for advice.

The advice I usually get from honest attorneys generally runs like this: "Your case may/may not have merit, however, in the end it's all up to the judge."

My husband? That's interesting.

Most attorneys (unlike my ladyboy-husband tho) offer a free initial consultation.

Originally Posted by dallis

The advice I usually get from honest attorneys generally runs like this: "Your case may/may not have merit, however, in the end it's all up to the judge."

You are getting an advice from an attorney? What for?

[Gladiator]

If it's a legit letter that is directed to legit, true details - it'd be insane NOT to consult an attorney as it could be as simple as an out of court settlement or it could result in them sending your info to a prosecutor or filing a civil lawsuit - maybe both.

[dachilla]

Originally Posted by Gladiator

If it's a legit letter that is directed to legit, true details - it'd be insane NOT to consult an attorney as it could be as simple as an out of court settlement or it could result in them sending your info to a prosecutor or filing a civil lawsuit - maybe both.

exactly what I was trying to tell them, except for the procecutor part.

[Gladiator]

Originally Posted by dachilla

exactly what I was trying to tell them.

There are hundreds of cases of arrogant sellers ignoring letters like this that ended up with significant judgments. I know of a case that a guy was selling Universal Monster shirts, was sent a C&D and ignored it. He sold just 5 shirts and ended up having to pay $9000 + legal fees. Sometimes it's best not to ignore it - especially in cases like this were you are clearly liable.

You offered sound advice. I'd heed it if I was OP.

[GreenBean]

Originally Posted by dallis

Pretty much what it says. They want the OP to 'cease and desist' from whatever it is they're complaining the OP is doing.

Oompaloompa asked a different question. What does a possible defendent do?

Originally Posted by oompaloompa

Can you explain the purpose of a cease and desist letter to the IP owner? What does this state and what does it achieve.

The reply is that this is an initial start to their defense.

NB, I am talking about UK and Australian law.

[dachilla]

Originally Posted by oompaloompa

Can you explain the purpose of a cease and desist letter to the IP owner? What does this state and what does it achieve.

To most IP owners (especially if its a big company) it's most important that the violator stops doing what he is doing right away. In most cases it's not about compensation or damages. It's about their name and their reputation.

These letters are a warning to the violator. They're meant to settle things outside the court. For that reason the the violated party (or their lawyer) sends a letter to the violator and has him sign a cease and desist agreement.

In that agreement the accused infringer promises not to do it again. And most of the times he also promises to bear the legal fees that the infringed party had so far. Meaning: the violator promises that he'll never do it again and pays the lawyers fees for the letter he got.

After that things between both parties are settled.

In some countries the injured party is obligated to send a cease and desist letter to the violator before initiating infringement proceedings. (in russia for example)

If the violator doesn't react the injured can take things to the next step and that's when **** hits the fence.

[phaz0rz]

^^Good clarification, dachilla. Your comments in post #11 made it seem like you were recommending to the OP that they draft their own C&D to send to the copyright holder. I was wondering what would be accomplished by sending the mega-corp a C&D for their own copyrighted product.

[dachilla]

Originally Posted by phaz0rz

^^Good clarification, dachilla. Your comments in post #11 made it seem like you were recommending to the OP that they draft their own C&D to send to the copyright holder. I was wondering what would be accomplished by sending the mega-corp a C&D for their own copyrighted product.

Usually the infringed party will send a cease and desist agreement formulated by their lawyer.

There are certain details that the agreement needs to meet in order to be a valid out of court settlement.

However most lawyers go over the top with that and add stuff to the agreement that doesn't have to be in there.

For example the agreement states:

1. I promise not to do it again
2. I promise to pay for apples lawyer fees that occurred from sending me this letter
3. I promise to pay 2k $ in damages to apple

Now, in order to settle things out of court only the first condition has to be met. After promising that he won't do it again, they can't sue him for damages anymore. That's why some try to include flat-rate damages in the c&d agreement together with other stuff.

That is why I told OP to get a lawyer and have HIS lawyer formulate a c&d agreement that'll settle things out of court, BUT protect him from other claims as mentioned above.

[oompaloompa]

good clarification.

1. I promise not to do it again
2. I promise to pay for apples lawyer fees that occurred from sending me this letter
3. I promise to pay 2k $ in damages to apple

ok but what if the damages are 20K !?

[dachilla]

Originally Posted by oompaloompa

good clarification.

1. I promise not to do it again
2. I promise to pay for apples lawyer fees that occurred from sending me this letter
3. I promise to pay 2k $ in damages to apple

ok but what if the damages are 20K !?

You misunderstood or I didn't say it clear enough. The amount for damages isn't in question at this point. There are no damages to be paid at this stage. Cease and desist protects the infringing party from having to pay damages by agreeing to immediately stop doing what they r doing and promising for the future not to do it again. That's the whole point of the c&d: "You agree to not **** with our trademark anymore, and we agree not to take things any further."

However, when you get a letter regarding an ip infringement, they will always add a cease and desist agreement, that they want you to sign and send back to them. Such pre-drafted agreement will look something like.

1. I promise not to do it again
2. I promise to pay for apples lawyer fees that occurred from sending me this letter
3. I promise to pay X amount $ in damages to apple
4. In case I violate my promise of not doing it again I agree to pay X amount to apple

This is over the top. Agreeing to pay any damages isn't necessary to settle things. That's why you get a lawyer who's gonna re-draft the agreement. You'll then sign the modified agreement and send it back.

Gonna look something like this
1. I promise not to do it again

And that's it. This is enough to get things settled. The lawyer might cost you a few bucks but certainly not as much as it would cost you if you signed the pre-drafted agreement by the other party.

Edit: The flat rate of X $ in point 3 is mostly way lower than the actual damages claimed. Most of the times they will estimate the damages at around 50-80k $. However this is what they will claim if things go to court. X in point 3. is mostly around 5-10% of the actual damages claimed. This is a bit confusing but when you think about it, it makes sense.

[dachilla]

Originally Posted by tinsoldier

Incorrect again. The burden of proof lies with the claimant to quantify their loss, not a randon figure made up by judge.

That's interesting. How about damages to the reputation of the rights holder? It's almost impossible to quantify that.

Lets say you sold 50000 ⊗⊗⊗⊗ iphones on your ebay account and the ⊗⊗⊗⊗ Iphones turn out to be **** compared to the real ones. And based on that, your 50k customers spread the message over the internet that the iphone is full of **** and doesn't work as promised by the manufacturer.

So now apple has to proof how many people on earth bought a samsung instead of an iphone because you selling ⊗⊗⊗⊗ iphones?

I reckon in cases like this a judge will grant an "adequate compensation" to apple, even tho the damages caused to their reputation can not be specified in detail.

If it works another way in the UK I'd be interested to know.

[GreenBean]

Originally Posted by dachilla

That's interesting. How about damages to the reputation of the rights holder? It's almost impossible to quantify that.

Lets say you sold 50000 ⊗⊗⊗⊗ iphones on your ebay account and the ⊗⊗⊗⊗ Iphones turn out to be **** compared to the real ones. And based on that, your 50k customers spread the message over the internet that the iphone is full of **** and doesn't work as promised by the manufacturer.

So now apple has to proof how many people on earth bought a samsung instead of an iphone because you selling ⊗⊗⊗⊗ iphones?

I reckon in cases like this a judge will grant an "adequate compensation" to apple, even tho the damages caused to their reputation can not be specified in detail.

If it works another way in the UK I'd be interested to know.

A seller with that volume would likely be attracting UK Border Force attention.
A different jurisdiction would likely achieve prosecution.

An UK incident that comes to mind is DVD reproduction, aka bootlegging. At least one of the principals went down for a considerable time. One of their favoured items was Disney, if I recall correctly.

(for non-UK users, ‘went down’ means was imprisioned )

[MM78]

Not sure if anyone from the UK watches "F@ke Britain", it's simply amazing the stuff that is f@ked and sold in the UK.

[phaz0rz]

Originally Posted by MM78

Not sure if anyone from the UK watches "F@ke Britain", it's simply amazing the stuff that is f@ked and sold in the UK.

Well UK is a little closer to the source, but I honestly don't think it's any better over here.

If a company manages to develop anything with a profit margin higher than 20%, they can expect to see the (worldwide) market flooded with phakes within a year. GoPro is a good example.

[MM78]

Originally Posted by phaz0rz

Well UK is a little closer to the source, but I honestly don't think it's any better over here.

If a company manages to develop anything with a profit margin higher than 20%, they can expect to see the (worldwide) market flooded with phakes within a year. GoPro is a good example.

Ay man....keep that on the down low! lol. I actually have not seen a 1:1 f@ke of a GoPro.

[oompaloompa]

Anyone see mattyman post on intros? pertinent to topic
https://www.aspkin.com/forums/introd...whos-back.html

[rsot]

Originally Posted by MM78

Ay man....keep that on the down low! lol. I actually have not seen a 1:1 f@ke of a GoPro.

GoPro f*ke? Geez is nothing sacred? Hah